New Deportation Ground: Federal Conviction Of Failure To Register As A Sex Offender

Effective July 27, 2006, Congress passed a law which adds
a new deportation ground to the INA making deportable '[a]ny
alien who is convicted under [18 U.S.C. § 2250] . .
. .' [1] The law also renumbers
former INA § 237(a)(2)(A)(v) (pardons) as (vi). This
new law also precludes United States citizens or lawful
permanent residents who have been convicted of a specific
list of offenses committed against minors from petitioning
to obtain lawful permanent resident status for their family
members.[2] While a federal conviction
of violating 18 U.S.C. § 2250 triggers deportation
and disqualification from eligibility for cancellation of
removal for non-lawful permanent residents, it does not
appear to trigger any other major adverse immigration consequences:

It is not a ground of inadmissibility, because it is not
listed in INA § 212(a)(2) and does not constitute a
crime involving moral turpitude.
It is not an aggravated felony, since it is not listed as
such.[3]
Therefore, this conviction does not disqualify a Lawful
Permanent Resident from eligibility for cancellation of
removal. Moreover, this conviction does not stop the clock
for cancellation of removal.[4]
It does not trigger mandatory detention.[5]
A lawful permanent resident with this conviction is not
'seeking admission' when returning to the United States.[6]
This conviction does not create a bar to showing Good Moral
Character.[7]
It has no effect on eligibility for political asylum. [8]
It does not disqualify a person from eligibility for voluntary
departure, either prior to the issuance of a removal order,[9]
or after issuance of the order.[10]

This conviction therefore does not trigger any of the listed
adverse immigration consequences except for deportation
and disqualification from eligibility for cancellation of
removal for non-lawful permanent residents.

The federal criminal offense conviction of which constitutes
this new ground of deportation was recently enacted and
codified in 18 U.S.C. § 2250. It requires persons who
have been convicted in any jurisdiction of any of a large
number of specific sex offenses to register in the jurisdictions
of their conviction, incarceration, residence, or school
within three business days after sentence or prior to release
from custody. Any noncitizens who violate this new registration
requirement may be convicted in federal court, and, once
convicted, are deportable and disqualified from cancellation
for non-LPRs. It is therefore very important to educate
the immigration and criminal defense bars immediately on
this situation, so as to prevent these deportable convictions
by ensuring that our clients comply with this new requirement.

A more detailed treatment of this new ground of deportation
may be found at www.CriminalAndImmigrationLaw.com. Because
a noncitizen must first have been convicted of a listed
'sex offense,' and then have failed to register, and then
have been convicted under federal law of failure to register,
few noncitizens will be subjected to this ground of deportation.
Moreover, they will suffer the immigration consequences
of their prior conviction for a 'sex offense,' regardless
of this new deportation ground. Finally, this conviction
triggers only deportation and disqualification from cancellation
of removal for non-LPRs, while leaving open the possibility
of all sorts of other forms of relief in immigration court.
Once again, this legislation appears to be little more than
a public relations stunt, insofar as the great majority
of noncitizens is concerned. Nonetheless, it provides three
important ways the government can attack noncitizens convicted
of sex offenses, and in effect nationalizes the machinery
of sex offender registration, and affected clients should
be warned of the importance of complying with this new legislation.

Recent Developments

UNITED STATES SUPREME COURT GRANTS CERTIORARI TO DECIDE
WHETHER AN AGGRAVATED FELONY THEFT OFFENSE INCLUDES AIDING
AND ABETTING

The Supreme Court agreed to hear the issue of whether a
vehicular theft conviction under California law is categorically
a 'theft offense' under the aggravated felony definition.
The Ninth Circuit's unpublished decision in the case below
relied on case law holding that a theft statute that includes
a conviction for a substantive offense based solely on aiding
and abetting liability is not categorically a theft offense
for purposes of the aggravated felony definition. See, e.g.,
Penuliar v. Ashcroft, 395 F.3d 1037 (9th Cir. 2005), amended
435 F.3d 961, 970 n.6 (2006); Martinez-Perez v. Ashcroft,
393 F.3d 1018, 1028 (9th Cir. 2004). The Court put the case
on an expedited briefing schedule, with the government's
brief due 10/26; Duenas-Alvarez' brief due 11/20; and the
government's reply due on 11/27. Argument will be on 12/5.
The eventual decision in the case may have broad implications
for many pending criminal and immigration cases. Thanks
to Dan Kesselbrenner.

UNITED STATES SUPREME COURT HEARD ARGUMENT ON OCTOBER 3,
2006 IN CASE TO DECIDE WHETHER SIMPLE POSSESSION CAN CONSTITUTE
A DRUG TRAFFICKING AGGRAVATED FELONY

In the consolidated cases of Lopez v. Gonzales (05-547)
and Toledo-Flores v. United States (05-7664), the Supreme
Court will consider whether drug crimes that are felonies
under state law but misdemeanors under federal law qualify
as 'aggravated felonies' for immigration purposes. Appearing
as amicus, NLADA argued that treating such crimes as aggravated
felonies causes unequal punishments across jurisdictions
and can result in punishments that are grossly disproportionate
to crimes.

FIRST CIRCUIT -- AGGRAVATED FELONY - DRUG TRAFFICKING -
STATE CONVICTION OF SECOND POSSESSION OF CONTROLLED SUBSTANCES
DID NOT CONSTITUTE AN AGGRAVATED FELONY BECAUSE STATE PROSECUTOR
DID NOT PLEAD AND PROVE THE PRIOR IN THE SECOND CASE

Berhe v. Gonzales, ___ F.3d ___, 2006 WL 2729689 (1st Cir.
Sept. 26, 2006)(Massachusetts 1996 conviction of misdemeanor
simple possession of crack cocaine under Mass. Gen. Laws
ch. 94C, § 34, and Massachusetts 2003 misdemeanor conviction
of simple possession of crack cocaine, were not aggravated
felony drug trafficking convictions under INA § 101(a)(43)(B),
8 U.S.C. § 1101(a)(43)(B), not because they were classified
as misdemeanors under state law, but because they were simple
possession offenses and the prosecution, in the second case,
did not plead and prove the prior possession conviction,
and the record of conviction in the second case does not
contain facts that would convert it from a misdemeanor to
a felony conviction if it had been prosecuted in federal
court).

United States v. Alvarado-Hernandez, ___ F.3d ___, 2006
WL 2621650 (5th Cir. Sept. 14, 2006)(Texas conviction for
consensual sexual intercourse with a 14-year-old victim
in violation of Penal Code § 22.011(a)(2), met the
common-sense definition of crime of violence, for purposes
of imposing a sixteen-level upward adjustment for an illegal-reentry
conviction under U.S.S.G. § 2L1.2(b)(1)(A)(ii) since
it fell within the generic, contemporary definition of 'statutory
rape' which is specifically listed as a 'crime of violence'
for this purpose).

NINTH CIRCUIT -- AGGRAVATED FELONY - SEXUAL ABUSE OF A
MINOR - CONVICTION DID NOT CATEGORICALLY CONSTITUTE SEXUAL
ABUSE OF A MINOR BECAUSE THE ELEMENTS DID NOT REQUIRE PSYCHOLOGICAL
OR PHYSICAL ABUSE

United States v. Baza-Martinez, ___ F.3d ___, 2006 WL 2729691
(9th Cir. Sept. 26, 2006)(North Carolina conviction of taking
indecent liberties with a child, in violation of N.C.G.S.
§ 14-202.1 [take or attempt an immoral, improper, or
indecent liberty with a child under 16 by defendant more
than five years older, for purpose of arousing or gratifying
sexual desire, which can be committed by mere words], was
not categorically sexual abuse of a minor, because the statute
did not require as an element the infliction of psychological
or physical harm to the minor, and therefore did not constitute
a crime of violence under USSG § 2L1.2(b)(1)(A)(ii)
for purposes of imposing a 16-level enhancement of sentence
for illegal reentry), disagreeing with United States v.
Izaguirre-Flores, 405 F.3d 270 (5th Cir. 2005); Bahar v.
Ashcroft, 264 F.3d 1309 (11th Cir. 2001)(interpreting same
statute of conviction but reaching opposite conclusion).

This decision defines 'abuse' for purposes of defining
'sexual abuse of a minor,' in the context of a federal sentencing
decision, as requiring an element of the infliction of psychological
or physical harm to the minor. There is no reason, however,
why this definition should not also apply to the task of
defining 'sexual abuse of a minor' aggravated felonies.
In addition, it could be argued in defining 'abuse' for
purposes of the child abuse domestic violence deportation
ground.

TENTH CIRCUIT JOINS THOSE FINDING TRIAL DOES NOT DISQUALIFY
NONCITIZEN FROM ELIGIBILITY FOR WAIVER OF DEPORTABILITY
UNDER FORMER INA § 212(C)

After knowing, as the Supreme Court has informed us, that
Congress did not expressly indicate a desire to disturb
settled expectations of those entering guilty pleas when
relief under former INA § 212(c) was available by retroactively
abolishing relief for them, it is absurd to conclude that
the same Congress did express with sufficient clarity a
desire to disturb the settled expectations of the availability
of 212(c) relief of those who went to trial believing that
212(c) relief would be available if they lost. Nonetheless,
far too many circuits have adopted this silly reasoning.
It is reassuring that despite the larger chorus of silly
decisions, the Tenth Circuit has applied some clear thinking
to the issue.

BIA -- CRIME OF MORAL TURPITUDE - MISPRISION OF FELONY

Matter of Robles, 24 I. & N. Dec. 22 (BIA Sept. 27,
2006)(federal conviction of misprison of a felony, in violation
of 18 U.S.C. § 4, constitutes crime of moral turpitude,
since mere failure to report an offense is insufficient,
offense requires affirmative conduct of concealment, contrary
to the duties owed to society; 'evil intent' is implict
in statutory requirement that offender take affirmative
step to conceal a felony from the proper authorities).

This decision is very badly reasoned, for the reasons given
in the dissent in Navarro-Lopez v. Gonzales, 455 F.3d 1055
(9th Cir. July 31, 2006) (California conviction for accessory
after the fact, in violation of Penal Code § 32 ['Every
person who, after a felony has been committed, harbors,
conceals, or aids a principal in such felony, with the intent
that said principal may avoid or escape from arrest, trial,
conviction or punishment, having knowledge that said principal
has committed such felony or has been charged with such
felony or convicted thereof, is an accessory to such felony.'],
was a conviction involving a crime of moral turpitude, rendering
respondent inadmissible and ineligible for cancellation
of removal). The BIA mistakenly concluded that mere violation
of the duties owed to society - which is present in every
single criminal offense - is sufficient to make the offense
a CMT. This would mean that all offenses by definition are
CMTs, and none are not. It proves too much, and completely
abolishes the meaning of the concept of crimes of moral
turpitude, and renders the 'moral turpitude' language surplusage.
This interpretation thus violates the statute. The law is
clear that regulatory offenses, that are wrong merely because
they are illegal or unauthorized, are not CMTs.

Matter of Guerra, 24 I. & N. Dec. 37 (BIA Sept. 28,
2006) (no error for immigration judge to consider a pending
criminal charge, and the evidence underlying it, in deciding
whether a noncitizen would be a danger to the community
if released from immigration custody).

BIA -- RELIEF - CANCELLATION - STOP-TIME RULE TRIGGERED
BY CRIMINAL CONDUCT THAT CONSTITUTES GROUND OF INADMISSIBILITY
OR DEPORTABILITY EVEN THOUGH NOT CHARGED OR FOUND AS GROUND
OF REMOVAL

Matter of Jurado-Delgado, 24 I. & N. Dec. 29 (BIA Sept.
28, 2006)(commission of offense stops the clock for cancellation
of removal, by terminating a period of continuous residence
in the United States pursuant to INA § 240A(d)(1)(B),
even though the offense was not charged as nor found to
be a ground of inadmissibility or deportability), distinguishing
Matter of Fortiz, 21 I. & N. Dec. 1199 (BIA 1998); see
also Salviejo-Fernandez v. Gonzales, 455 F.3d 1063 (9th
Cir. 2006)(rejecting due process challenge to use of uncharged
conviction to find a noncitizen ineligible for relief).

Statutes, is a crime involving moral turpitude, even though
there is no element requiring specific intent permanently
to deprive the owner of the property, because the BIA found
it reasonable to assume that the taking is with the intent
to retain the merchandise permanently where the elements
of the conviction require taking merchandise offered for
sale by a store without paying for it and with the intention
of depriving the owner of the goods).

This decision is erroneous, since this statute is not divisible,
as it does not contain more than one set of elements, and
therefore the BIA should follow the minimum conduct rule.
It did not do so in this case. Because the statute of conviction
allows conviction even if the intent is only temporarily
to deprive the owner of the property, minimum conduct required
to sustain a conviction does not involve moral turpitude.
Therefore, under the proper analysis, a conviction of violating
this statute is not a CMT.

BIA -- CRIME OF MORAL TURPITUDE - FALSE STATEMENT TO GOVERNMENT
AGENT

Matter of Jurado-Delgado, 24 I. & N. Dec. 29 (BIA Sept.
28, 2006)(Pennsylvania conviction of unsworn falsification
to authorities in violation of title 18, section 4904(a)
of the Pennsylvania Consolidated Statutes [with intent to
mislead a public servant in performing his official function,
either (a) makes any written false statement he does not
believe true, or submits any writing he knows to be forged,
altered, or inauthentic] is a crime involving moral turpitude,
even through materiality is not an element of the offense,
because the statute requires as an element the intent to
disrupt the performance of a public servant's official duties
and this impairs and obstructs governmental functions by
impairing efficiency, which involves moral turpitude).

About The Author

Norton Tooby practices in Oakland, California, and received his B.A. from Harvard College in 1967, and his J.D. from Stanford Law School in 1970, where he served as President of the Stanford Law Review during 1969-1970. He specializes in consulting concerning the immigration consequences of criminal cases, and in obtaining post-conviction relief for immigrants, and publishes practice manuals for immigration and criminal lawyers, such as CRIMINAL DEFENSE OF IMMIGRANTS (2003) and POST-CONVICTION RELIEF FOR IMMIGRANTS (2004). This article was first published as a Newsletter on www.CriminalAndImmigrationLaw.com, which is maintained by the Law Offices of Norton Tooby.

Joseph Justin Rollin B.A., University of Washington, 1997, J.D., University of Washington School of Law, 2001, worked for two years as an Attorney Advisor for the Executive Office of Immigration Review before joining the Law Offices of Norton Tooty as an Associate Attorney in 2003. He has since co-authored CRIMES OF MORAL TURPITUDE (2d ed. 2005), AGGRAVATED FELONIES (3d ed. 2006), and SAFE HAVENS: HOW TO IDENTIFY AND CONSTRUCT NON-DEPORTABLE CONVICTIONS (2005) with Mr. Tooby.

For more information about Norton Tooby's Practice Manuals and CD's, see here. For information about upcoming seminars, see here.

The opinions expressed in this article do not necessarily reflect the opinion of ILW.COM.